Employers Guide to MS

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“I’m Brent, a 3rd-year law student at Thompson Rivers University with an undergraduate degree in business management. During my 1st year of law school, my brother was diagnosed with MS. I didn't know much about MS at the time, so when a chance to do a research project working with MS Canada arose, I jumped at the chance. This project combined my undergraduate knowledge and legal research skills with the opportunity to learn more about MS. Having seen the everyday experiences my brother has with MS; I hope this research will help employers better understand and work with employees who live with or are affected by MS.” – Brent Isfeld, Author of Employers Guide to MS

Disclosure of Diagnosis

Generally, an employee has no duty to disclose their diagnosis to their employer. An employee’s right to privacy is protected by legislation, both federally and provincially. However, disclosure is needed to justify the accommodation and to inform their employer as to what actions they may take to provide accommodation. An employee who seeks accommodation must provide a sufficient amount of information to facilitate the accommodation.  

Form of a Disclosure

There are two main elements to a disclosure: the source of the information and the information contained in it. The source is a medical professional with working knowledge of your employee’s health status, generally, the employee’s doctor; however, other medical professionals could include a nurse, nurse practitioner, or neurologist. Employees have the right to choose how their personal information is conveyed to their employer. Various forms may include a medical note, an email, or a phone call from a medical professional. 

The information must inform the employer of the reasons for which the accommodation is sought. As an employer, if you believe more information is needed, best practice dictates that you ask the employee directly and state why you need more information. If an employee refuses to provide their employer with sufficient information, the employer is not bound to accommodate them. Likewise, an employer who has received sufficient information, regardless of their belief in its sufficiency, is bound by the duty to accommodate.  

Can I share the disclosed information?  

Generally, you cannot disclose the employee’s diagnosis without their express consent. The best practice is to ask the employee if you can disclose the information to a specific person and why you would like to disclose that information. However, if imminent danger to an employee’s health or safety occurs, you may disclose this information to an appropriate party to prevent harm. An appropriate party is dependent on the context but could be aptly described as a party that could prevent imminent danger. This may include, but is not limited to an immediate supervisor, an emergency worker, or a human resources worker.  

Can I send my employee for a second opinion on the diagnosis?  

An employer cannot ask the employee for a second opinion unless a contract, collective bargaining agreement (for unionized employees), or other legal source states otherwise. Before adding a ‘second opinion’ clause, it is recommended that you consult a lawyer to ensure that it does not violate any employment, privacy, or human rights laws.  

Accommodation

Every employer has a duty to accommodate. As described by the Supreme Court of Canada (the “SCC”), the duty to accommodate is "[a duty] to arrange the employee's workplace or duties to enable the employee to do his or her work." This section will outline various questions you may contemplate when facing accommodation. 

When do I need to accommodate an employee living with MS?  

A Human rights and employment legislation, protect a person's right to be free from discrimination in the workplace. However, the Charter is not a source of protection in the private workplace. Concerning MS, this is freedom from discrimination based on a disability. The definition of disability has slight alterations in different jurisdictions. However, the provincial/territorial definitions are similar to the definition in the Accessible Canada Act, which defines a disability as: 

"any impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment — or a functional limitation — whether permanent, temporary or episodic in nature or evident or not, that, in interaction  with a barrier, hinders a person's full and equal participation in society." 

The Accessible Canada Act only applies to federally regulated workplaces. What can be taken away from this definition is that an episodic disability due to MS fits within the duty to accommodate with certain exceptions stated later in this resource.  

How can I choose accommodation for an employee?  

The accommodation of an employee's needs is a joint venture in the employer–employee relationship. Both parties have a responsibility to create, agree to, and implement an accommodation plan. As stated previously, an employer must provide reasonable accommodation, or in other words, accommodation up to the point of undue hardship.  

What level of accommodation must I offer to my employee?  

The extent to which you must accommodate your employee depends on the circumstances. No two people will experience MS the same way. In legal terms, the level of accommodation is to the point of undue hardship. While there is no catch-all definition for undue hardship, most legislation and court decisions maintain that the point of undue hardship is where the accommodation is so demanding that it is no longer feasible to continue employment operations under the new constraints. The most common factors in determining undue hardship are:  

  1. The cost of the accommodation 
    • Expensive accommodation is not necessarily past the point of undue hardship. The expense of the accommodation must be so high that you could no longer feasibly operate your business.  
  2. Health and safety of the workplace and its workers 
    • Accommodation that endangers the workplace, or other workers will be past the point of undue hardship.  
  3. The nature of the accommodation and employers' business  
    • The nature of the accommodation must be available, given the nature of the employers' business. For example, a server who experiences MS-related fatigue may be unable to take any evening shifts. However, if the business only operates in the evening, then accommodation that would necessitate a non-trivial change of the business's hours of operation would be past the point of undue hardship.  

An employer should also be informed about episodic disability (periods of wellness followed by periods of disability) that characterize a disease like MS. Employees with MS may have relapses that cause symptoms that fluctuate in severity, length of time, and type of symptom. The level of accommodation rule is the same in these instances. You must accommodate the employee to the point of undue hardship. You cannot claim undue hardship on the basis that it is ‘too difficult’ to predict when a relapse may occur. You would be required to have accommodation either in place or readily available at any given time.

Episodic disabilities are long-term health conditions that are characterized by periods of good health interrupted by periods of poor health. These periods of illness and disability may vary in severity,
length, and predictability. Episodic disabilities may also be invisible to others.

How can I accommodate my employee? 

The accommodation of an employee's needs is a joint venture in the employer–employee relationship. Both parties should be involved in creating an accommodation plan. The SCC listed variable work schedules and staff transfers as possible ways to accommodate an employee. However, the exact accommodation depends entirely on the employee's situation (symptoms or disease progression) and employment. Review the Job Demands and Accommodation Planning Tool (JDAPT), and share it with your employee. The JDAPT tool was developed to help workers with episodic disabilities identify ways that they can be supported in the workplace. This will help in conversations with your employee about what support they require and devise a solution together. Here are a few examples of accommodation: 

  1. Fatigue - you could accommodate your employee by providing a flexible work arrangement including the option to work from home, or where possible, scheduling shifts based on the employee’s optimal time of day.  

  1. Symptoms affecting mobility (numbness, lack of coordination, weakness) - suitable accommodation may include offering them an office closer to restrooms, elevators, and exits.  Additionally, employers should ensure their place of employment is accessible and is not a barrier to employees or any other person entering the premises. Vertigo (dizziness) – providing the employee the option to sit or stand. If the work is primarily done on a computer, provide them with the option to work from home. 

Are there circumstances when I do not have to accommodate my employee? 

Other than when the accommodation would create undue hardship, an exception to accommodation is when a symptom or disability progression caused by MS affects a Bona Fide Occupation Requirement (BFOR). A BFOR is a requirement or trait fundamental to the job's performance—for example, a neurosurgeon's fine motor skills or a pilot's eyesight. In these cases, you do not have to provide accommodation for the specific job (i.e., you do not have to accommodate the neurosurgeon to keep them in that position). However, you still may need to accommodate them if a possibility exists without creating undue hardship. For example, if a transfer to a new position is possible.  

Lastly, an employer does not have a duty to accommodate an employee exactly to the employee’s specifications. An employee does not have the right to refuse a reasonable alternative form of accommodation in favour of a more preferred form, even if the employee’s favoured accommodation would not cause the employer undue hardship. For example, an employee who works a desk job experiences fatigue and weakness in her arms and legs, which makes it difficult to sit or stand for extended periods. The employee may request a height-adjustable desk and ergonomic chair to make it easier to deal with fatigue. However, the employee does not have the right to tell the employer to purchase a specific desk and chair brand. That right lies with the employer. 

Other Considerations

Negligence  

As their employer, some employees may be hesitant to talk to you about any symptoms (or challenges) they are managing due to MS. However, both parties are responsible for ensuring that the work being performed is done safely. As an employer, if you fail to prevent harm where you reasonably should have acted or ought to have known you should have acted, you may be found to have committed the tort of negligence. The tort of negligence occurs when an individual or organization fails to act with a degree of care that a reasonable person in similar circumstances would have, resulting in harm or damage to another person or their property. Suppose an employee destroys property, harms another person, or damages a person or thing. In that case, you may be found to be “vicariously liable” for their actions. Also, it may be negligent on the part of an employee who experiences MS symptoms that interfere with their ability to do their job and fails to ask their employer for accommodation, knowing they need accommodation to work safely. 

Collective Bargaining Agreements (Unionized Employees)  

Unionized workplaces are governed by a collective bargaining agreement (CBA). Suppose you are an employer in a unionized workplace. In that case, looking at the CBA to see if it contains processes on how accommodation, disclosure, or other procedures discussed in this document are to be performed is essential.  

Employees who are Caregivers of People Living with MS 

An employee who has asked for accommodation to provide care for a person with MS may benefit from the same rights as someone living with MS. To do so, the relationship between the employee and person with MS must be protected by law. For example, a parent-child relationship is protected under s.3 of the Canadian Human Rights Act. The Federal Court of Appeal held that not accommodating childcare needs is a form of discrimination. However, in most cases, the employee who is also a caregiver must have no other option for care but to provide the care themselves.  

Terminating an Employee

In rare cases when terminating an employee is justified, an employer should ensure that they have done their due diligence in the process. This includes following any termination protocols, such as giving proper notice, that the employer must follow, through legislation, contract, or collective bargaining agreement. It is also advised, that an employer consults with a legal expert beforehand.  

Helpful Resources

There are many helpful resources that you can find online. Employment standards and human rights websites for each province and territory are available. Here are a couple of useful tools that may help you (current as of January 2024):  

This document was created in partnership with the Pro Bono Students of Canada (PBSC), written by Brent Isfeld, PBSC Thompson Rivers University Chapter 2022-2023.